Supreme Court’s Decision in Clapper Case Creates Catch-22

On February 26, the U.S. Supreme Court ruled in Clapper v. Amnesty International USA (Case No 11-1025) that the groups and individuals challenging a federal law that authorizes intercepting foreign electronic communications, even if they involve Americans on one end of the conversation, could not proceed with their lawsuit because they did not have sufficient proof that their communications had been, or were likely to be, intercepted.

In a statement released to the media, TCP President Virginia Sloan said the Court’s decision creates a “true Catch-22” because neither the Congress nor the president will direct the government to disclose the opinions of the secret Foreign Intelligence Surveillance Court, making it nearly impossible to identify individuals actually subject to this monitoring. “Americans cannot guard their constitutionally-protected rights if even the legal rules and standards under which our government operates are kept secret,” she said.

TCP’s Liberty and Security Committee explained in its Report on the FISA Amendments Act of 2008 that the law authorizing the surveillance program lacks adequate privacy safeguards to avoid intrusions on Fourth Amendment rights. The Committee also urged that the opinions of the Foreign Intelligence Surveillance Court be released. Because the Court decided on jurisdictional grounds that the case cannot proceed, the courts will not address the underlying, larger issue raised in this case of the constitutionality of the federal government’s electronic monitoring of targeted foreigners when one party to the conversation is protected under the Fourth Amendment.

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